The proposed Voting Rights Amendment Act of 20144 (VRAA) attempts to do just that. The VRAA’s new criteria defining when jurisdictions become subject to preclearance are acutely responsive to the concerns articulated in Shelby County. The result is a preclearance regime that, if enacted, would operate in fewer places and demand less from those it regulates.5 This new regime, however, would not only be more targeted and less powerful, but, curiously, more vulnerable to challenge. In fact, the regime would be more vulnerable precisely because it is so responsive to Shelby County. Some background will help us see why.

First enacted in 1965 and extended four times, the preclearance provision of the Voting Rights Act provided a remarkably effective mechanism to address intractable racial discrimination in voting. Designed to “shift the advantage of time and inertia from the perpetrators of the evil to its victims,”6 preclearance prevented public officials in places that had used discriminatory voting practices from changing their electoral rules without first demonstrating to federal officials that the changes would be nondiscriminatory.7 The regime’s effectiveness lay in its ability to block discriminatory electoral changes before they were implemented. Not infrequently, it kept changes from being proposed in the first instance.

This deterrent effect bolstered the regime’s legality or, at least, was widely thought to do so. Immobilized by Shelby County, preclearance had been vulnerable to attack since 1997 when the Supreme Court decided City of Boerne v. Flores.8 That decision and its progeny9 demanded a far tighter connection between constitutional violations and congressionally crafted remedies than prior precedent had required. In particular, theyrequired extensive evidence of widespread and ongoing unconstitutional conduct to support congressional remedial action. This requirement raised the question whether the constitutional injuries preclearance addressed remained sufficiently widespread and in need of remedy to justify the continued operation of the regime.10

What made preclearance especially vulnerable was the fact that conditions for political participation in the places where it applied had improved markedly since Congress first crafted the statute. The misconduct that remained did not obviously rise to the level that Boerne and its progeny demanded. But preclearance also differed from the statutes invalidated in the Boerne cases in an important respect. The preclearance regime Congress reauthorized in 2006 was an operational regime rather than a wholly new one. Unlike the statutes at issue in the Boerne cases, the preclearance requirement had been enforced for decades. This meant that conditions in the places where it applied needed to be evaluated in light of the regime’s ongoing operational effect. More specifically, that evaluation needed to determine whether observable improvements signaled a problem solved or simply one kept in check by the very regulatory measures in place.

The evidence collected to support the 2006 VRA reauthorization made clear that preclearance better resembled an umbrella in a rainstorm than an “elephant whistle” shooing away a non-existent threat.11 Lower court decisions leading up to Shelby County noted that “extensive testimony” and “concrete examples” demonstrated that the regime operated in an “undeniably powerful manner” to deter and prevent discriminatory voting changes.12 The regime’s deterrent effect was far from a hypothetical case being used justify the regime “to the crack of doom,”13 and instead had been documented by substantial record evidence.14

Shelby County did not address this evidence. Nor did it address whether this record as a whole — which documented a host of electoral problems that persisted in covered jurisdictions despite the regime’s deterrent effect — was sufficient to meet the Boerne standard. Indeed, the opinion did not cite Boerne at all.

Instead, Shelby County raised a distinct and novel objection to the 4(b) coverage formula. The opinion observed that the discrimination documented in the record was not as severe as it was when Congress first crafted the regime; that, despite these improvements, Congress had not altered the statute’s pre-existing coverage formula; and that preclearance regulated practices beyond the ones that Congress listed in the original coverage formula.15 Based on these observations, the Court concluded that continued reliance on 4(b) was irrational and, accordingly, that Congress could no longer enforce preclearance in the places that met the 4(b) criteria.16

Much can be said about this conclusion.17 For present purposes, however, what is most relevant is that the proposed amendment to 4(b) addresses the Court’s articulated concerns head on. If enacted, the new VRAA coverage formula would subject states to preclearance if they amass five or more federal voting rights violations during a rolling fifteen-year period, and cover local jurisdictions with three or more violations or just one if there also is “persistent, extremely low minority turnout” over the past fifteen years.18 This formula differs from the original 4(b), relies on more current conditions, and depends on voting rights violations that are more coextensive with the practices preclearance regulates. It thus responds to Shelby County’s concern that Congress had left 4(b) unchanged, that it relied on stale conditions, and that those conditions were insufficiently connected to the contemporary problems the regime addressed.19

Most notably, the new formula takes seriously Shelby County’s objection to the regional differentiation 4(b) produced. Unlike the 2006 reauthorization, which extended preclearance temporally but did not change its limited geographic reach, the new coverage formula “start[s] from scratch.”20 It does not distinguish between jurisdictions that had been subject to preclearance and those that had not. Instead, it casts a nationwide net, using a rolling fifteen-year clock to capture contemporary voting rights violations.

That makes a lot of sense given what Shelby County said. But it also comes at a cost. Because the VRAA does not distinguish places once subject to preclearance from others, it defines conditions that warrant coverage without regard to the deterrent effect of the prior regime. The state trigger, for example, is five violations in fifteen years regardless of whether those violations occurred in a place that had been subject to preclearance prior to Shelby County. And yet, the significance of those violations differs depending on whether they occurred in a jurisdiction that had been subject to preclearance and its documented deterrent effect or in a less regulated environment.

This distinction matters if, as seems likely, Shelby County’s articulated objections to 4(b) did not capture all of the Court’s concerns about the preclearance regime. After all, Shelby County never resolved whether the record underlying the 2006 reauthorization passed muster under the Boerne doctrine. Should the VRAA become law, a new Boerne challenge will arise and it will insist that Congress lacks power to subject jurisdictions to preclearance based only on a relatively small number of voting rights violations that involve conduct that may, but need not, have violated the Constitution. Such a challenge would be a serious one and, quite plausibly, stronger than the one that targeted the regime the VRAA is attempting to supplant.

The challenge, of course, would not be unanswerable. A curious feature of the VRAA’s new formula is that the only states it is expected to cover are states that were, in fact, covered previously.21 As applied to these states, the VRAA might more easily be found to comport with Boerne’s requirements, given both the specific statutory and constitutional violations involved and the deterrent effect of the prior regime.

A less targeted Boerne-based challenge to the VRAA might be rebuffed as well. As proposed, the new preclearance regime is arguably Boerne-compliant in all its potential applications, including its application to places that had not been subject to preclearance before Shelby County. That determination, however, would need to be made without regard to the deterrent effect of the prior regime. This might not matter, given that deterrence, no matter how well substantiated, was always going to be a tough sell in this Court. And yet, going forward without it leaves the new preclearance regime distinctly vulnerable to attack. It also severs the new regime from the foundational judgment that propelled its previous extension. The judgment that preclearance offered necessary protection in the places it applied depended, in large measure, on the deterrence the regime had been shown to provide. Deterrence will no longer serve this function.

* Ralph W. Aigler Professor of Law, University of Michigan Law School.

10. Boerne and some of its progeny explicitly distinguished the evidence supporting the statutes they invalidated from the record of egregious conduct that first prompted Congress to enact the preclearance regime. See, e.g., Boerne, 521 U.S. at 524–27. Boerne, moreover, described the temporal and geographic limits of the preclearance regime as useful, albeit not essential, characteristics. Id. at 533.

11. CompareShelby Cnty., 133 S. Ct. at 2650 (Ginsburg, J., dissenting) (“Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”), with Transcript of Oral Argument at 28, Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009) (No. 08-322) (comparing Section 5 of the Voting Rights Act to an “elephant whistle”).

]]>http://harvardlawreview.org/2014/04/dismissing-deterrence/feed/0Voting Rights Law and Policy in Transitionhttp://harvardlawreview.org/2014/04/voting-rights-law-and-policy-in-transition/
http://harvardlawreview.org/2014/04/voting-rights-law-and-policy-in-transition/#commentsMon, 14 Apr 2014 20:27:09 +0000http://harvardlawreview.org/?p=2875The Voting Rights Amendment Act1 (VRAA), recently introduced in the House by Representatives Sensenbrenner and Conyers and in the Senate by Senator Leahy is a valiant effort to save the Voting Rights Act2 (VRA), an iconic statute that many of us have called a superstatute.3 The VRAA is a response to the Supreme Court’s decision in Shelby County v. Holder,4 which struck down section 4(a) of the VRA, the provision that identified the jurisdictions that needed to submit or preclear their proposed changes prior to implementation, under section 5 of the Act, to the Department of Justice or the United States District Court for the District of Columbia.

But even assuming that the bill becomes law, the VRA as amended by the VRAA will at best be a pale shadow of its former self. Sections 4(a) and 5 of the VRA, prior to the Court’s decision in Shelby County, applied, in whole or in part, to fifteen states. The VRAA proposes a new coverage formula, which applies to states that have “persistent [and] extremely low minority turnout” and have committed five voting rights violations in a fifteen-year period.5 Under this new formula the VRAA would apply to four states: Georgia, Louisiana, Mississippi, and Texas. This is the most that the Democrats in Congress believe that they can get the Republicans to agree on and it is uncertain — and many are skeptical — that this bill can become law.

Unfortunately, the VRAA attempts to capture, as much as possible, the regulatory framework that was in place for the latter part of the twentieth century. If the VRAA will become law, recapturing some elements of the past seems to be the only point of bipartisan agreement. The VRAA does not even begin to capture the voting problems of today — such as photo voter identification requirements, which are explicitly exempted from the VRAA.

In addition, in at least one respect, the VRAA is a step backwards. It compels supporters of voting rights to file suit against the states and litigate extensively in order to show that a voting rights violation has occurred. This is one reason that some civil rights groups have expressed misgivings about the VRAA, notwithstanding the extreme pressure for all groups to support the Amendment. Moreover, as Professor Ellen Katz argues in her commentary in this Forum, the VRAA is vulnerable under the Court’s Boerne doctrine in a way that the VRA never was.6

Perhaps more importantly, the VRAA does not have much to say about looming voting rights issues such as proof-of-citizenship requirements. Consider this question in greater detail. In a recent decision, the U.S. District Court for the District of Kansas ruled that the Election Assistance Commission (EAC) does not have the statutory authority to preclude the States of Arizona and Kansas from demanding that voters interested in registering to vote in federal elections, through the National Voter Registration Act, prove that they are citizens of the United States.7 The court ordered the EAC to immediately modify the federal voter registration form to include the proof-of-citizenship language demanded by the states.8

As with many electoral rules, proof-of-citizenship requirements have a disproportionate impact on some identifiable groups of voters. In this case, the voters most likely to be impacted are poor voters and voters of color. By some accounts, more than 10,000 voters in Kansas have been unable to vote because they have not been able to provide proof of citizenship.9 Similarly, when Arizona enacted its proof-of-citizenship requirement, tens of thousands of voters (by one account over 30,000) were unable to vote, notwithstanding the fact that the vast majority of the affected voters were United States citizens.10 Among the group of voters that was disproportionately impacted by Arizona’s proof-of-citizenship requirement, Latino voters, not surprisingly, were overrepresented.11 Latino voters have some of the lowest registration rates in many parts of the country, including Arizona, where only about forty-four percent of Latino citizens are registered as compared to over sixty-eight percent registration rate for white voters.12

In many respects, proof of citizenship is the new voter identification requirement. Just as many state legislatures that were controlled by the Republican Party started implementing rules requiring photo voter identification — in fact, the only states that have implemented voter photo identification requirements have been those controlled by the Republican Party — we are likely to see a new wave of proof-of-citizenship requirements sweep across the country, in those legislatures that are Republican-controlled. Georgia has already requested that the EAC modify the federal voter registration form to reflect the fact that Georgia requires its voters to produce proof of citizenship.13

But the VRAA has nothing to say about these issues. Though the VRAA may be the best offer on the table and though its purpose is laudable, it is at best an extremely modest statute.

In this respect, it is worth drawing attention to the fact that the original Voting Rights Act was an unusual statute. The Voting Rights Act of 1965, hard fought as it was and even though it dragged the Democratic Party in the South kicking and screaming into the twentieth century, represented a legal and public policy consensus on the need to eradicate first-generation barriers to racial equality in voting. In South Carolina v. Katzenbach,14 Chief Justice Warren referred to the legislation as “stringent,”15 “inventive”16 and “uncommon.”17 The Act posed a “basic” constitutional question: “has Congress exercised its powers under the Fifteenth Amendment in an appropriate manner with relation to the States?”18 This meant, he continued, that “[a]s against the reserved powers of the States, Congress may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting.”19

The Act was unusual not simply because it was “inventive” or “uncommon.” It was unusual because it gave rise to and then reflected a broad consensus with respect to the need to eliminate racial discrimination in voting. In Katzenbach, the Court aligned itself with that consensus while at the same time legitimating the VRA. Under Katzenbach, the VRA would remain in good constitutional standing for only as long as the justices understood American society as rife with racism.

Fast-forward to the recent Shelby County case. The majority opinion in Shelby County essentially declared that the work of the VRA, eliminating racial barriers to voting by the states, has essentially been completed. Consequently, the Court did not think that Congress could justify the then-existing formula in light of current circumstances. The Shelby County opinion is best understood as a policy document — arguably, no more or less of a policy statement than Katzenbach — a statement by the conservative majority on the Court that it disagrees with Congress about the nature and scope of voting rights law.

The question is: Where should voting rights law and policy proceed from here? On a first pass, this is an easy question to answer, as there is no shortage of suggestions for a new coverage formula and possible directions for voting rights policy. The task is simply to choose among the various offerings. More poignantly, the VRAA, the current offer on the table, reflects a choice and the likely direction of the near future.

But upon deeper examination, it is likely the case that a new consensus over the future of voting rights policy will elude us for a very long time. Voting rights policy is in a moment of transition and there is currently no consensus in the political process on how to move voting rights policy forward. Voting rights law and policy are currently caught between two different ideological visions. For some, law and policy, including constitutional law, ought to remove all barriers that impose any significant or meaningful burden on the right to vote. For others, states have the power and the responsibility to enact voting laws to assure that only legitimate voters participate in the political process. These positions are both ideological and partisan. Conservatives and Republicans tend to favor state laws ensuring the responsible exercise of the right to vote. Liberals and Democrats tend to favor laws that maximize political participation and self-government. Voting rights law and policy are caught between both visions.

This ideological and partisan divide is one reason that Congress has proven, so far, to be incapable of responding to Shelby County. Congress could have greeted the Court’s decision in Shelby County with disdain because the Court struck down an act of Congress, a co-equal branch. Shelby County could have reasonably been viewed as a symbol of a showdown between Congress and the Court about a major public policy initiative.

But the institutional lens is neither the most compelling explanatory variable for the Court’s decision in Shelby County nor does it explain Congress’s response to Shelby County. The Court’s decision is best understood not in institutional terms, but in ideological terms. Congress’s putative response, in the form of the VRAA, is also best understood in partisan and ideological terms. Shelby County tapped into the ideological and partisan divide that currently exists in voting rights law and policy.

To the extent that the VRAA is weak and anemic, as Professor Katz intimates,20 the VRAA’s weakness is a reflection of both the constraint imposed by the Court in Shelby County — the need to update the coverage formula to reflect current circumstances — and the partisan divide — making voting as easy as possible as against assuring that voting is exercised responsibly by eligible citizens. The VRAA is an attempt to craft a bipartisan compromise that fits narrowly between both positions.

In our view, voting rights activists ought not settle for the valiant but modest effort that is the VRAA. An extremely narrow, modest, and constitutionally vulnerable statute, born of the supposed need for political compromise, is not worth fighting for. Rather, civil rights activists should engage the political process to build a new vision that encompasses racial equality in voting. What is needed is a new voting rights movement that takes as its goal the need to build a consensus over broad universal political participation. This new consensus will have to be, necessarily, forged along ideological and maybe even partisan lines. Eventually, one view will prevail.

In North Carolina, as a consequence of laws passed by the state that limit voting rights, citizens have started to build such a grassroots movement. They call it Moral Mondays. The movement has spread from North Carolina to Georgia and South Carolina.21 The Moral Mondays movement may ultimately fizzle out. But the movement is an example of the type of political and social movement that ought to capture the attention of voting rights activists.

The VRAA is but a temporary way station. It need not be the final destination for voting rights policy. Voting rights activists ought to strive to build consensus in favor of broad participation rights by citizens. Such a movement would be a worthy heir to the majestic Voting Rights Act of 1965.

]]>http://harvardlawreview.org/2014/04/voting-rights-law-and-policy-in-transition/feed/0Voting Rights Disclosurehttp://harvardlawreview.org/2013/11/voting-rights-disclosure/
http://harvardlawreview.org/2013/11/voting-rights-disclosure/#commentsWed, 20 Nov 2013 10:58:40 +0000http://localhost/2013/11/voting-rights-disclosure/In the aftermath of the Supreme Court’s decision in Shelby County v. Holder1 to scale back parts of the Voting Rights Act of 19652 (VRA), the question is, what’s next? Professor Samuel Issacharoff’s comment Beyond the Discrimination Model on Voting attempts to provide an answer.3 Issacharoff describes section 5 of the VRA as an outdated, race-based, command-and-control, ex ante approach to regulation that misses “major voting concerns of recent years”4 — including restrictive voter identification laws and restrictions on access to early voting — which stem from “Republican control” of state legislatures.5 Issacharoff asserts that “[i]nstead of the limited race-driven use of equal protection and the Fifteenth Amendment, there is untested room for expansion of congressional intervention under the Elections Clause.”6 In exercising this “expansive” power under the Elections Clause, Issacharoff proposes that Congress compel “states to disclose alterations of voting rules or practices, as they will affect the conduct of federal elections.”7

I agree with Issacharoff and several other scholars that disclosure holds promise as a significant tool to protect voting rights.8 More transparency would deter unfair voting practices, increase legal compliance, and reduce the amount and cost of litigation. I also appreciate that Issacharoff’s disclosure regime is nationwide (thereby avoiding problems with the preclearance coverage formula identified by the Court in Shelby County), and that it facilitates both private and public enforcement. I also agree that both Congress and the states should take steps to curb politicians’ manipulations of voting rules and make voting more accessible for all Americans.

Yet the benefits of congressional interventions under the Elections Clause should not prompt us to abandon the Fifteenth Amendment. Attempts to protect “access to the franchise” for all Americans need not displace a commitment to craft modern tools that prevent voting discrimination. There is no reason the two regimes cannot coexist, since they address separate, legitimate goals.

Indeed, absent a strong commitment to preventing voting discrimination, Issacharoff’s approach alone is incomplete. For example, Issacharoff’s Elections Clause—based disclosure proposal applies only to federal elections. Congress should also use the Fifteenth Amendment to require disclosure in state and local elections. Further, while disclosure is important, it is not enough. Rather than abandon preclearance, Congress should update preclearance by tying coverage to areas with recent voting rights violations. Congress should also streamline voting rights litigation to make it more efficient and effective.

I. Race Matters

Issacharoff sees the “major voting concerns of recent years” not as discrimination against voters of color, but as partisan efforts “to restrict . . . access [to the franchise] in order to diminish the political impact of vulnerable constituencies.”9 Examples include restrictive voter identification, the rollback of early voting times and places, and regulations that make voter registration more difficult.10 According to Issacharoff, the likely site of these new, major voting concerns is not the South, but presidential battleground states such as Ohio.11 Issacharoff acknowledges that these laws “likely had . . . a disparate racial impact,”12 but he argues that race is just one avenue in which politicians violate their duties to voters to gain advantage. Others include “partisanship, personal gain, political favoritism, or outright corruption.”13

Echoing the language of race-neutral affirmative action skeptics, Issacharoff suggests that there exists an “increasing mismatch between the narrow civil rights model and the nature of contemporary threats to the right to vote.”14 Rather than continue to live in the past, Issacharoff urges us to look beyond the discrimination model on voting. In updating the VRA, Issacharoff asserts that “[i]nstead of the limited race-driven use of equal protection and the Fifteenth Amendment, there is untested room for expansion of congressional intervention under the Elections Clause.”15 Issacharoff offers what he describes as a “new model,” based on “a non—civil rights vision”16 that would help “insulate the right to vote from naked efforts at partisan manipulation.”17

While the desire to minimize race is understandable in light of dramatic improvements in race relations in the past fifty years, discounting the need to prevent racial discrimination is a mistake. In many parts of the country, many whites and people of color cast ballots for different candidates along racial lines, and some political operatives try to benefit from this racially polarized voting by manipulating election rules to lower turnout or dilute the votes of racial or language minorities. Although Issacharoff largely cabins this problem into a 1965 black/white framework, the problem is increasing in many areas, due in large part to fast-growing populations of Latinos and Asian Americans that threaten the political status quo, as well as the fact that voting patterns of different racial groups in many areas are becoming increasingly divergent. Nueces County, Texas, provides a recent example. After the rapidly growing Latino community surpassed fifty-six percent of its population, the county gerrymandered local election districts to diminish the influence of Latino voters. The section 5 preclearance process blocked Nueces County’s racial gerrymandering in 2012.18 And in Runnels County, Texas, where ninety percent of Latino voters speak Spanish at home, the county defied a court order requiring that every polling place have at least one bilingual poll worker — in November 2009, not one county polling place satisfied that requirement.19

Part of the problem is Issacharoff’s characterization of section 5 as limited to blocking access-based discrimination. Issacharoff writes that, by the 1980s,20 section 5 “had accomplished much of its purpose, removing the literacy tests and other barriers to black enfranchisement,”21 and that “section 5 was receding in importance as voting rights moved into the domain of political power, not simply access to the franchise.”22 This argument downplays, however, the language of section 5 itself, which requires preclearance not just of a change to “any voting qualification or prerequisite to voting,” but also of a change to “any . . . standard, practice, or procedure with respect to voting.”23 The Justice Department followed the express intent of Congress and originally enforced section 5 to apply to all voting changes (not just changes relating to access to voting). The Supreme Court’s opinion in Allen v. State Board of Elections24 affirmed such an application.25 Generally, problematic jurisdictions did not try to reintroduce voting tests and devices but instead enacted measures that discriminated through other means, particularly by dilutive redistricting, methods of elections, and annexations.26

Voting discrimination is not simply political gerrymandering, but a special problem that warrants unique protections. Diminishing minority votes does not become acceptable because it is motivated by political gain rather than racial animus. Historically, political operatives have excluded minorities for political purposes. Politicians shut out African Americans in the late 1800s because many voted Republican. They also excluded African Americans in the 1900s because many would have voted for pro-integration candidates.27 Diminishing the votes of minorities poses special dangers because it reduces incentives for cross-racial coalitions, increases incentives for politicians to scapegoat minorities, and fuels racial division. The unique dangers of voting discrimination are so significant that we altered the Constitution through the Fifteenth Amendment to prevent the practice.

Granted, it is important to protect the voting rights of all Americans. There is no reason, however, that we must retreat from strong protections to prevent racial discrimination in voting or abandon congressional use of the Fifteenth Amendment.28 Choosing between the Fifteenth Amendment and the Elections Clause is a false choice. We can simultaneously work to prevent racial discrimination in voting and improve election administration for voting for all Americans. The 1960s and 1970s yielded the passage and extension of both a VRA that prevented voting discrimination and various legal directives that expanded voting rights to new residents, members of the military, eighteen-year-olds, and those unable to pay a poll tax.29

When Issacharoff actually proposes legislation implementing his new “non—civil rights” model, even he is not “beyond” race. He requires disclosure of the anticipated effect on access to the ballot “and any known anticipated impact on minority voters in particular.”30 This is the right policy, as a disclosure requirement without a consideration of race would be woefully inadequate,31 but it illustrates that a “non—civil rights” perspective can go only so far.

II. Expand Disclosure

Instead of limiting disclosure to federal elections, I would expand disclosure to include federal, state, and local elections. I would also require more detailed demographic information in areas with significant minority populations and racially polarized voting, particularly for redistricting, annexations, and other changes that may dilute minority voting strength without impeding voter access.

Issacharoff touts the “broad” power of the Elections Clause as preferable to the “limited race-driven use” of the Fifteenth Amendment,32 but his choice to move “beyond” racial discrimination limits his proposal to federal elections. As a result, Issacharoff’s disclosure proposal misses manipulation of local election rules for offices such as sheriff, county commissioner, city council, or school board member. These offices are often nonpartisan and escape national attention, but they make important decisions related to schools, criminal justice, health and family services, and economic opportunity that directly affect our daily lives.

Granted, most states have elections for state and federal offices at the same time, and thus Issacharoff’s federal disclosure proposal would cover many voting changes that simultaneously apply to federal, state, and local elections (for example, voter identification, early vote rollback, and registration rules). Issacharoff’s rule, however, would not disclose the bulk of unfair local and state activity. At least 86.4% of all election changes that resulted in section 5 objections since 2000 would not have been disclosed under Issacharoff’s proposal.33 That is because even when federal, state, and local elections are conducted at the same time, many important changes would remain undisclosed under Issacharoff’s proposal, including state and local redistricting (such as in Nueces County, Texas) and changes to special elections, candidate qualifications, the method of elections, and the structure of government (for example, reductions in the number of members of a county commission). Also, Issacharoff’s proposal would not disclose local annexations, consolidations, or divisions of political units.

These local changes, however, would benefit the most from disclosure. American democracy is unique because state, county, and municipal officials have great discretion with respect to promulgating and administering election rules. There are, for example, over 3000 counties in the United States. While decentralization breeds innovation, it also obscures the adverse effects of a regulatory change in one locality.

Issacharoff acknowledges that his proposal does not aspire to “comprehensive perfection, but to a regulatory approach that captures more of the contemporary issues than one designed in 1965.”34 The effects of many of the statewide “contemporary issues” he lists, however — such as photo identification and early vote rollback in swing states — would be publicly debated and analyzed even without disclosure. These statewide changes generally receive statewide and often national press coverage; and they can spur public education, legislative advocacy, and lawsuits funded by state and national political campaigns, good government groups, and civil rights groups. Indeed, two national advocacy groups already monitor and periodically report on restrictive voting bills in state legislatures.35

Local changes, in contrast, often do not appear in the New York Times or Washington Post. Voters in places such as Runnels County, Texas (population 11,500), often lack the thousands and sometimes millions of dollars necessary to bring a lawsuit to challenge an unfair local election change. Not only does Issacharoff’s disclosure proposal fall short of “comprehensive perfection,” it also misses the vast majority of the types of changes that have been problematic in recent years and that are most in need of disclosure.

Aside from failing to require disclosure of local election changes, Issacharoff’s plan falls short in other ways. While Issacharoff would require a reporting of “all changes made to election practice,” the voting impact statement “need not be elaborate, only a statement of the likely anticipated effect on access to the ballot and any known anticipated impact on minority voters in particular.”36 This “access to the ballot” seems to focus on regulations that make voting harder, such as restrictions on early vote opportunities (certainly a reasonable reading by an election official looking to avoid disclosure), and if so would miss racial manipulation of other voting rules implemented to dilute minority voting strength.

Discriminatory practices can diminish the impact of minority votes without diminishing formal “access to the ballot.” For example, while the discriminatory gerrymander in Nueces County split up the votes of Latinos, it did not reduce the number of Latinos who voted. Similarly, the city council of Calera, Alabama, lost its sole African American member after officials redrew the only city council district that had a majority African American constituency in 2006; that district dropped from seventy percent to thirty percent African American.37 Another example: In 2010, African Americans in Augusta-Richmond, Georgia, made up a much larger percentage of the electorate in elections held in November (52 percent) than in elections held in July (43 percent);38 two years later, officials moved local elections from November back to July.39 Other changes in which discriminatory effects might not be disclosed under an “access to the ballot” standard include changes to candidate qualifications, the method of elections, the structure of government, and local annexations, consolidations, or divisions of political units.

Further, despite extensive criticism of command-and-control, ex ante civil rights regulation (a criticism that would counsel in favor of repealing the ban on literacy tests), Issacharoff does not articulate a fully theorized view of disclosure. As a result, important larger normative questions remain unanswered, such as how to balance the need for detailed and effective disclosure with reasonable, nonburdensome reporting requirements that are both politically and constitutionally feasible.

While Issacharoff’s Elections Clause disclosure proposal is limited to federal elections, I propose that Congress adopt a disclosure regime covering federal, state, and local elections based on the Fifteenth Amendment and the Elections Clause.

Enhanced disclosure rules are needed now in state and local elections in large part because the Court has rolled back preclearance. The primary benefit of preclearance was disclosure of all local voting changes in particular jurisdictions, which deterred countless numbers of unfair election changes that were either withdrawn or never submitted. The law required that all or parts of fifteen states and localities submit all proposed changes to election rules to federal officials for review. Politicians in covered states and localities knew that the effects of all new election rules would be reviewed, and this comprehensive disclosure deterred a great deal of bad activity. Preclearance increased states’ and localities’ compliance with the Act and thereby reduced the amount and cost of litigation, both to voters and to governments.

Various factors, including the pervasiveness of racially polarized voting, political campaigns’ and parties’ attention to the racial composition of election districts, and the relatively minor burden of disclosure on states (especially compared with preclearance), suggest that such federal, state, and local disclosure would be appropriate nationwide in areas with significant minority populations.40 The Court has already recognized that disclosure is less burdensome than absolute restrictions in the election context.41 Voting rights disclosure that applies to federal, state, and local election changes is “rational” and “congruent and proportional” to preventing and remedying discrimination.

While Issacharoff would require disclosure of the “likely anticipated effect on access to the ballot and any known anticipated impact on minority voters in particular,”42 I would require more. In states and localities with significant minority populations and racially polarized voting, I would require disclosure of information identifying the anticipated effect of all types of voting changes on racial and language minorities (not just voter access changes). For redistricting and for annexations, consolidations, and divisions of political units, I would require demographic information about the voting-age population of the jurisdiction before and after the change, maps of the location of minorities, and the previous and new boundaries of voting districts.43

The disclosure regime should also grapple with practical details, such as the need to prevent jurisdictions from circumventing true disclosure through misreporting or providing technically true but incomplete reporting. It should also provide enforcement measures for noncompliance (many states currently fail to comply with existing federal requirements to disclose the numbers of voters registered in department of motor vehicles’ offices, public assistance offices, and disability offices).

I agree with Issacharoff’s borrowing of Dodd-Frank’s requirement that a responsible official should sign, under oath, to affirm that the submitted information is true, but more details are needed. Many insights may come from disclosure in other fields — including not just securities disclosure and environmental impact statements, but also campaign finance disclosure and antitrust requirements for mergers. Areas that require disclosure to advance civil rights enforcement might provide particular insights, such as state laws requiring racial impact statements for new criminal law legislation, equal employment opportunity disclosure, and preclearance rules that require disclosure. That said, one cannot assume that the specifics of disclosure in one context will be identical to disclosure in a different context. For example, securities and environmental impact statement disclosures are detailed and lengthy, whereas the voting context may require less extensive disclosure due to constitutional considerations.

III. Beyond Disclosure

While Professor Issacharoff criticizes preclearance and focuses on disclosure alone to update the VRA, I believe Congress should also update preclearance and the voting rights litigation process. Some jurisdictions with recent voting rights violations should be required to produce more detailed information than would be required by the disclosure proposals above, and this information should be scrutinized by experts before these particular jurisdictions implement their voting changes. Disclosure is important, but it is not enough.

Even if geographic section 5 preclearance coverage is more limited in the future, it still has a role in dealing with the worst offenders. Issacharoff described preclearance as a “fixed rule trying to hold back the subtle changes of politics”44 — a “static regulatory structure” unable to account for changed circumstances and the dynamic nature of politics.45 In fact, preclearance was not a fixed prohibition on a discriminatory practice (unlike, say, the ban on literacy tests), and it could adapt and prevent new forms of discrimination that were unforeseeable in 1965 or even in 2000.46 It accommodated decentralization, diversity, and innovation by allowing jurisdictions to devise all types of rules as long as they could simply show that they did not discriminate against people of color. It was — as many regulatory devices are — less expensive and more efficient, effective, and expeditious than litigation. While Issacharoff touts independent election administration as the “most attractive” alternative after Shelby County47 (which Issacharoff concedes is unrealistic for political reasons48), the preclearance procedure gave state and local politicians in covered jurisdictions wide discretion to administer elections, but used generally independent administrative experts to review each change and ensure that it was not discriminatory. Contrary to Issacharoff’s suggestion, Shelby County did not strike down the ex ante race-discrimination nature of preclearance.49 The case simply held that the coverage formula was outdated.50 The answer to Shelby County is not to abandon the Fifteenth Amendment or preclearance as a tool, but to devise a coverage process that is more current and dynamic — making it easier to bail in to preclearance — and to seriously time-limit the preclearance, and to ensure that it is supervised by a court.

In updating preclearance, Congress should amend the section 3(c) bail-in provision of the VRA,51 so that jurisdictions that commit a voting rights violation — including not just those motivated by a discriminatory purpose, but also those that simply had a discriminatory effect — may be ordered by a court to preclear future election changes for a fixed period of time.52

Congress should also update the voting rights litigation process. While Issacharoff believes disclosure alone will “lessen the litigation burden on those challenging suspected official misconduct” by setting “the template for either DOJ challenge or private party challenge, with the disclosure serving as the prima facie evidentiary basis,”53 he is probably overly optimistic. Despite disclosure under oath, some clever politicians intent on implementing a change can probably devise a pretext that satisfies the formal disclosure requirements and is technically true without providing an easy roadmap upon which to file a voting rights lawsuit. Instead, disclosure’s true benefit is likely the deterrence of bad acts, and that could increase compliance and reduce the number of lawsuits.

Congress should update the voting rights litigation process to make it less expensive, more expeditious, and more efficient in stopping discriminatory procedures before they are used in elections and harm voters. For example, litigation expenses often run into the hundreds of thousands of dollars. In addition to the attorney time required to take depositions and request and review mountains of paper, one or more expert witnesses are almost always needed to analyze data, and the cost of retaining these experts is only increasing.54

States and localities generally have greater access to information about proposed election law changes, and the updated VRA should lower costs by shifting more responsibility to states and localities to show in court that a change is fair and that less harmful alternatives do not exist. The burden-shifting framework in the federal employment discrimination context is a good model. (Issacharoff believes that new election rules could be “effectively scrutinized even under a rational relations standard of review,”55 which would do little to lower the cost of litigation and would leave too many unfair voting rules in place.) Along these same lines, a modern VRA should update section 2 litigation standards designed for redistricting cases so that they more effectively address other problems — such as hurdles to casting a ballot.56

Conclusion

Professor Issacharoff’s “beyond discrimination” approach is incomplete. We need not choose between the Fifteenth Amendment and the Elections Clause — we can work simultaneously both to prevent racial discrimination in voting and to improve access to the franchise for all Americans. To that end, Congress should require disclosure not only in federal elections using the Elections Clause, but also in state and local elections using the Fifteenth Amendment. Further, Congress should update preclearance so that it is closely tied to areas with contemporary voting rights violations, and it should streamline voting rights litigation.

17. Id. at 106. Issacharoff is part of a school of scholars who have recently pushed for a shift from preventing discrimination to general election reform. See,e.g., Richard H. Pildes, The Future of Voting Rights Policy: From Anti-Discrimination to the Right to Vote, 49 How. L.J. 741 (2006); Rick Pildes & Daniel P. Tokaji, What Did VRA Preclearance Actually Do?: The Gap Between Perception and Reality, Election L. Blog (Aug. 19, 2013, 4:39 AM), http://electionlawblog.org/?p=54521 (asserting that other tools may be more effective than section 5 at protecting access, including voter registration modernization, disclosure about voting systems, and reasonable identification requirements); Eric Posner & Nicholas Stephanopoulos, Don’t Worry About the Voting Rights Act, Slate (Nov. 20, 2012, 3:35 PM), http://www.slate.com/articles/news_and_politics/view_from_chicago/2012/11/supreme_court_and_section_5_of_the_voting_rights_act_it_s_ok_to_strike_it.html (“[A]ttention . . . should be focused less on the Voting Rights Act, and more on electoral reform that limits gerrymandering.”). Many of these voting rights scholars seem to borrow from the facially race-neutral trend in the affirmative action context (for example, class-based preferences) without distinguishing educational admissions and voting. Race-consciousness in educational admissions is designed to advance diversity, whereas voting rights protections aim to prevent contemporary discrimination by politicians who use race as a predictor of voting preferences in order to manipulate voting rules.

20. Issacharoff describes the 1990s as a period of “a brief reawakening” of section 5 due to the Justice Department’s “so-called ‘max black’ strategy.” Issacharoff, supra note 3, at 98. I agree the Supreme Court concluded that the Justice Department misapplied section 5 to a few statewide plans, but those instances were not representative of the vast majority of objections lodged during the 1990s.

25. Id. at 565—66, 568 (recognizing that section 5 was “aimed at the subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of their race,” id. at 565, and concluding that Congress intended that “all changes, no matter how small, be subjected to § 5 scrutiny,” id. at 568); see also City of Rome v. United States, 446 U.S. 156, 180—81 (1980) (finding that Congress recognized in 1975 the critical role that section 5 played in addressing discriminatory dilutive measures enacted after literacy tests and other barriers to black enfranchisement had been removed).

26. See alsoVoting Rights Act After the Supreme Court’s Decision in Shelby County: Hearing Before the Subcomm. on the Constitution and Civil Justice of the H. Comm. on the Judiciary, 113th Cong. 52—53 (2013) (statement of Spencer Overton, Professor of Law, The George Washington University Law School).

27. Issacharoff acknowledges the historic connection between political strategy and voting discrimination, but he fails to expand upon the unique implications of it. See Issacharoff, supra note 3, at 97 n.10.

28. See Franita Tolson, Reinventing Sovereignty?: Federalism as a Constraint on the Voting Rights Act, 65 Vand. L. Rev. 1195 (2012) (arguing that the Elections Clause as well as the Fourteenth and Fifteenth Amendments validate the VRA preclearance regime as it applies to local, state, and federal elections).

29. While Issacharoff purports to describe a new “non—civil rights” model, Issacharoff, supra note 3, at 104, Fourteenth Amendment challenges to restrictions on voting and the extensive power Congress enjoys over federal elections have been recognized for decades. SeeEx parte Siebold, 100 U.S. 371, 384 (1879) (“[T]he regulations [for federal elections] made by Congress are paramount to those made by the State legislature; and if they conflict therewith, the latter, so far as the conflict extends, ceases to be operative.”). Several other decisions have used the Fourteenth Amendment to invalidate restrictions on the fundamental right to vote. See,e.g., Dunn v. Blumstein, 405 U.S. 330 (1972) (invalidating a Tennessee restriction that limited voting to people who had lived in the state for at least a year); Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621 (1969) (invalidating a New York restriction that disqualified individuals who did not own or lease taxable real property or did not have children enrolled in the local public schools from voting for school district elections); Harper v. Va. Bd. of Elections, 383 U.S. 663 (1966) (invalidating Virginia’s poll tax); Carrington v. Rash, 380 U.S. 89 (1965) (invalidating a Texas restriction that disqualified active members of the military who did not live in Texas at the time they entered their service from voting). Granted, pushing general federal election reforms that seem partisan — like relaxed photo identification requirements and mandatory early voting — may prevent bipartisan agreement on updating the VRA and may endanger protections against voting discrimination upon which Democrats and Republicans can agree. See Spencer Overton, Against a “Post-Racial” Voting Rights Act, Am. Prospect (Aug. 21, 2013), http://prospect.org/article/against-post-racial-voting-rights-act. Nevertheless, aside from strategic decisions about the proper venues to make arguments, we should press for both measures that prevent voting discrimination and those that protect voting rights for all Americans. We should not use the vacuum created by Shelby County as an opportunity to push general election reform while abandoning the quest for tools to effectively prevent voting discrimination.

31. This approach modifies and improves upon an earlier nonracial approach in the New Republic, in which Issacharoff claims disclosure “would not be triggered by racial concerns,” and articulates factors that would not request basic information about the racial and language minority populations affected by voting changes. See Samuel Issacharoff, So the VRA Is Gutted. Here’s How to Still Fight Voter Discrimination, New Republic (June 28, 2013), http://www.newrepublic.com/article/113672/voting-rights-act-overturned-how-still-fight-voter-discrimination.

40. In Shelby County, the Court did not resolve whether federal voting rights legislation enacted pursuant to the Fifteenth Amendment should be reviewed by courts using a “rationality” standard or a “congruence and proportionality” standard. Compare South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966) (holding that the Court will only examine whether Congress has chosen a “rational” means of enforcing its Fifteenth Amendment powers), with City of Boerne v. Flores, 521 U.S. 507, 518—20 (1997) (acknowledging several cases in which federal voting rights protections have been held constitutional despite burdens placed on the states — including the nationwide ban on literacy tests in Katzenbach v. Morgan — and noting that “[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end,” id. at 520). See also Richard L. Hasen, Shelby County and the Illusion of Minimalism 10 (Univ. of Cal., Irvine Sch. of Law & Legal Studies Research Paper Series No. 2013-116, 2013), available athttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=2291612 (“Shelby County ignores the Boerne/Katzenbach standard of review question entirely (the majority fails even to cite Boerne in its opinion) . . . .” (footnote omitted)). As discussed below, a reasonable disclosure regime would satisfy either standard.

41. The Court has already weighed the burdens of disclosure on important constitutional interests in the campaign finance, lobbying, and petition-gathering contexts, and upheld disclosure. Although a relatively low percentage of campaign contributions over $200 and independent expenditures over $250 may be corrupting and disclosure may deter campaign contributions and independent expenditures, the Supreme Court has upheld disclosure of contributions and expenditures. The Court found such disclosure valuable in deterring corruption, providing information helpful to voters, and aiding in the enforcement of other campaign finance laws. See Buckley v. Valeo, 424 U.S. 1, 66—68 (1976) (per curiam); see also Doe v. Reed, 130 S. Ct. 2811 (2010) (upholding in an 8—1 vote disclosure of referendum petition signatures); Citizens United v. FEC, 130 S. Ct. 876, 915—16 (2010) (stating that “the informational interest alone is sufficient to justify” the challenged disclosure provisions); United States v. Harriss, 347 U.S. 612, 625 (1954) (upholding registration and disclosure mandates on lobbyists, even though Congress lacks the power to ban lobbying). The Court has recognized that “disclosure is a less restrictive alternative to more comprehensive regulations of speech” such as absolute bans on activity. Citizens United, 130 S. Ct. at 915; see alsoid. at 914 (“Disclaimer and disclosure requirements may burden the ability to speak, but they ‘impose no ceiling on campaign-related activities,’ and ‘do not prevent anyone from speaking.’” (first quoting Buckley, 424 U.S. at 64, and then quoting McConnell v. FEC, 540 U.S. 93, 201 (2003))). By analogy, disclosure of all federal, state, and local voting changes would deter discrimination, provide critical information to citizens in successfully voting, and aid in the enforcement of other voting rights protections. Even though a relatively low percentage of voting changes may be discriminatory and jurisdictions may experience slight burdens in submitting information, disclosure of voting changes is reasonable. Disclosure of voting changes is much less restrictive than preclearance, as disclosure alone does not prevent any jurisdiction from enacting a voting change. Disclosure is also less restrictive than other regulations the Court has upheld, such as the nationwide ban on literacy tests that applies to federal, state, and local elections. See Katzenbach v. Morgan, 384 U.S. 641 (1966).

43. This information, like the bulk of the information required by the Issacharoff disclosure proposal, was required to be submitted to the Justice Department under the preclearance administrative regulations. See 28 C.F.R. §§ 51.27—.28 (2013).

46. See Michael Halberstam, The Myth of “Conquered Provinces”: Probing the Extent of the VRA’s Encroachment on State and Local Autonomy, 62 Hastings L.J. 923, 955 (2011) (asserting that “preclearance has operated as a regime of forced disclosure, or ‘information-pushing’” and that preclearance is consistent with “new institutionalist” models of administration rather than centralized command-and-control regulation).

]]>http://harvardlawreview.org/2013/11/voting-rights-disclosure/feed/0Arizona v. Inter Tribal Council of Arizona, Inc.http://harvardlawreview.org/2013/11/elections-clause-ae-federal-preemption-of-state-law-ae-federal-voter-registration-ae-arizona-v-inter-tribal-council-of-arizona-inc/
http://harvardlawreview.org/2013/11/elections-clause-ae-federal-preemption-of-state-law-ae-federal-voter-registration-ae-arizona-v-inter-tribal-council-of-arizona-inc/#commentsWed, 20 Nov 2013 10:08:30 +0000http://localhost/2013/11/elections-clause-ae-federal-preemption-of-state-law-ae-federal-voter-registration-ae-arizona-v-inter-tribal-council-of-arizona-inc/http://harvardlawreview.org/2013/11/elections-clause-ae-federal-preemption-of-state-law-ae-federal-voter-registration-ae-arizona-v-inter-tribal-council-of-arizona-inc/feed/0Beyond the Discrimination Model on Votinghttp://harvardlawreview.org/2013/11/beyond-the-discrimination-model-on-voting/
http://harvardlawreview.org/2013/11/beyond-the-discrimination-model-on-voting/#commentsWed, 20 Nov 2013 09:51:13 +0000http://localhost/2013/11/beyond-the-discrimination-model-on-voting/Retirement with dignity was denied to section 5 of the Voting Rights Act of 1965 (VRA). If ever a statute rose to iconic status, a superstatute amid a world of ordinary legislation, it was the VRA. In the course of not quite half a century, the Act was pivotal in bringing black Americans to the broad currents of political life – a transformation that shook the foundations of Jim Crow, triggered the realignment of partisan politics, and set the foundation for the election of an African American President.

Deciding when the time has come is never easy. We see the athlete one step too slow to carry the team, the tenor no longer able to hit the necessary C, the pop star straining to hide the arthritic hip. Invariably there are the moments that recall stardom, be they increasingly seldom. But ultimately each waning icon is allowed to step down gracefully, carried by the fans basking in the memories of faded glory.

What President Lyndon Johnson introduced to America as the crown jewel of the civil rights era has now been struck down by the Supreme Court as timeworn, no longer constitutionally responsive to the America that the Act itself helped create out of the overt racialism of the American South. According to the Court in Shelby County v. Holder, civil rights—era concerns could no longer justify requiring certain jurisdictions to obtain Department of Justice (DOJ) approval before altering voting procedures. For instance, until the Court’s decision, Shelby County, Alabama, was subject to administrative preclearance because less than fifty percent of its citizens voted in the 1964 presidential election. For the Court’s majority, that was simply too long ago, leaving section 4, the VRA’s coverage formula, out of touch with current reality: “Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”

A constitution demanding a respect for the dignity of the states and contemporary proof of a close fit between means and ends when race-based distinctions are drawn allows no room for sentiment. “That is no country for old men,” wrote William Yeats of the willingness to cast aside the once vibrant but now rendered “a paltry thing.” And a Court no longer attached to the past glories of the Act looked with disregard at an odd legislative structure that tied its regulatory framework to turnout statistics from the 1964 presidential election. As a formal matter, the Court struck down only the formula and left untouched the constitutionality of the VRA’s preclearance structure. The Court took pains to leave open the prospect of a renewed coverage formula, one that does not turn on what seventy- and eighty-year-old voters did a half century ago, perhaps sending our currently dysfunctional Congress on a new wayward journey: “Congress may draft another formula based on current conditions.” But despite the Court’s care to avoid ruling on section 5, it was the indignity that “[s]tates must beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own” that provided the unacceptable constitutional insult.

The Court’s unromantic constitutional ruling should prompt rethinking whether the regulatory model of prior federal approval of voting changes is truly responsive to the voting problems of today. The critical assumptions of the challenged provisions of the Act corresponded to a world in which overt racial exclusion meant that black citizens faced first-order impediments simply to getting registered to vote and in which only the federal government could assume the responsibility to challenge the persistence of Jim Crow. For much of post—Civil War American history, the prospect for goal-oriented abuse of election processes has been directed largely – though never exclusively – at black Americans. As a result, for much of American history, voters’ vulnerability to disenfranchisement played out largely along race lines. Because of this, the defining law of democracy in America is heavily the law of black enfranchisement, either directly or even indirectly as in Baker v. Carr. But different times call for different measures, and the Court’s decision, however wrenching, should compel taking stock of what has changed since 1965.